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Duck Dynasty and the Misunderstanding of Rights in the Workplace

by Jason Shinn

A&E recently suspended Duck Dynasty's Phil Robertson "indefinitely" for comments he made in a GQ interview regarding his views on homosexuality and race relations. 

This suspension and those comments erupted into a cultural firestorm. The bulk of that discussion, however, was based on incorrect assumptions that have begun to masquerade as legitimate claims about the First Amendment and Religious freedoms in the workplace.  

Duck Dynasty - Singing the Blues about Race and Gays  

Mr. Robertson offered a range of comments in his GQ interview. On the subject of race, he said, "I tell you what ... Pre-entitlement, pre-welfare, you say: Were they [blacks] happy? They were godly; they were happy; no one was singing the blues.”

As to homosexuality, Mr. Robertson offered the following:

"Everything is blurred on what’s right and what’s wrong. Sin becomes fine."

Question: "What, in your mind, is sinful?"

Robertson: “Start with homosexual behavior and just morph out from there. Bestiality, sleeping around with this woman and that woman and that woman and those men."

Mr. Robertson also went on to articulate his (blunt) belief that homosexuality comes down to a choice of desirable preference:

"It seems like, to me, a vagina — as a man — would be more desirable than a man’s anus. That’s just me ... I mean, come on, dudes! You know what I’m saying? But hey, sin. It’s not logical, my man. It’s just not logical."

In response to Mr. Robertson's suspension, politicians and special interests groups on both ends of the spectrum wasted no time in using it to push their respective agendas or to try and retain some degree of relevance. A GOP congressional candidate, Ian Bayne, went so far as to comparing Mr. Robertson to civil rights icon Rosa Parks and that these remarks should be protected against employer action.

Sadly, exploiting these sorts of matters is to be expected. But at a minimum, the discussion should at the very least use the correct factual and legal discussion about First Amendment and religious rights when it comes to private sector employees and their employers.    

First Amendment and the Private Sector Workplace

The first point that people need to understand is that First Amendment speech protections typically do not apply to private employers. Public employment, i.e., governmental jobs, is different in that there are generally First Amendment limitations on the extent to which public employers may regulate or prohibit employees’ speech. In fact, Michigan maintains a free speech statute for public employees.  

Mr. Robertson, like any other private sector employee, simply does not have First Amendment protections under these circumstances. 

Protections Against Religious Discrimination 

Mr. Robertson, like other employees does have protections against religious discrimination. Religious discrimination is actionable under Michigan’s Elliott-Larsen Civil Rights Act (ELCRA) and its federal counterpart Title VII.

Religious discrimination cases usually involve (i) disparate treatment; or (ii) an employer’s failure to reasonably accommodate the employee’s religious beliefs. But neither of these issues appears to be in play with respect to Mr. Robertson's situation

Mr. Robertson - A victim of Religious Discrimination - Not Likely. 

So does Mr. Robertson have a claim for religious discrimination? Probably not.

Mr. Robertson arguably made his anti-gay comments in the context of discussing his religious beliefs. But it does not appear that A&E took adverse action against him because of his religious views. Instead, A&E's decision seems to relate to the inflammatory anti-gay nature of the comments. In fact, it takes very little imagination to assume that if a Muslim, someone of the Jewish faith, or an atheist employed by A&E said equally offensive remarks about gays or any other group that the company would have taken similar action.  

It is also very likely that A&E's decision to suspend Mr. Robertson would be bolstered by a common contract provision often referred to as a "morals clause." Generally, morals clauses provide that if the employee acts or speaks in a manner that is insulting or disrespectful towards a religion, group, or person the employer reserves the right to suspend or terminate that employee. Further, employers with such clauses often reserve broad discretion to determining what speech or conduct violates the clause. 

And Mr. Robertson could have easily declined to agree to such a clause. However, it is easy to understand why he would not have; He and his family receive $200,000 per episode of Duck Dynasty. Whether you agree or disagree   

Closing Thoughts

I don't watch Duck Dynasty. I tried one time, but I couldn't make it to the next commercial. It just didn't appeal to me. In contrast, Duck Dynasty's millions of viewers must find the show entertaining or worthwhile. To each their own. That should be one of the wonderful cornerstones of the U.S.  

I don't agree with Mr. Robertson's comments about homosexuals or his reinterpretation of the black experience prior to the civil rights movement. Again, a significant amount of the population believe homosexuality is inconsistent with their religious views and hopefully even less share his fond memories of the pre-civil rights era.

But when it comes to Mr. Robertson's suspension from his private sector employment, my preferences or views and those conflicting preferences or views really do not matter: There is no First Amendment protections when it comes to private sector employment and by all accounts the suspension was not based on religious discrimination and is probably consistent with Mr. Robertson's contract - a contract that has generously compensated Mr. Robertson.  

As an aside, a certain "Person of the Year" for 2013, Pope Francis, who may not know much about duck calls but presumably knows a thing or two about religion was asked about homosexuals. He responded, “who am I to judge a gay person?" Perhaps instead of judging Mr. Robertson or A&E or pushing a particular agenda, more attention should be given to this question. If not, at the very least, a proper understanding of the correct legal principles should be used in judging the situation in order to have a more meaningful discussion about the rights employees and employers have when it comes to First Amendment and religious issues in the workplace.   

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 Since 2001, Jason Shinn has provided employment and business law counseling to companies and individuals. He also routinely represents their interests in state and federal courts. For more information about Mr. Shinn or his law firm, visit www.shinnlegal.com.  


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